Tuesday, April 28, 2015

Then Lobbying Happened

by Neil H. Buchanan

A famous New Yorker cartoon shows two men standing in front of a chalkboard. On the left side of the board are some mathematical symbols. Another group of symbols has been written on the right side. In the middle, connecting the two sets of symbols, are the words "THEN A MIRACLE OCCURS." The older man points to those words and says, "I think you should be more explicit here in step two." This is a nerd-comic take on the concept of the deus ex machina: "a character or thing that suddenly enters the story in a novel, play,
movie, etc., and solves a problem that had previously seemed impossible
to solve."

I am becoming increasingly convinced that "lobbying" is now the miracle-equivalent that explains everything in politics, without actually explaining anything. We all think we know what lobbying is, and maybe even how it is supposed to work. We attribute many (all?) unfavorable political outcomes to it. At the end of the day, however, I doubt that we really have any idea what we are talking about. Let me offer a couple of small examples, along with a big counterexample, to make my point.

I was recently reading an article on the Vox blog about the Trans-Pacific Partnership (TPP) trade deal. (As an aside, I agree with Paul Krugman, who argued on Sunday on his blog that, really, "this is not a trade agreement.") The Vox piece was appropriately skeptical of TPP, describing how the deal could increase profits for large companies, especially drug makers. It turns out that an obscure provision of pharmaceutical law in the U.S. grants "data exclusivity" to U.S. drug makers. This means that a company that has paid for clinical trials need not share the data from those trials with other drug companies for 12 years. This is a problem, from the public's standpoint, because "[t]o introduce competing drugs before then, companies have to perform
their own set of redundant clinical trials. The higher cost of bringing
drugs to market leads to less competition and higher prices."

Surprising, and very interesting. Certainly, it was good news that the Obama administration had been thinking about a proposal to reduce the period of data exclusivity from 12 years to seven. But you know what is coming: "Yet under pressure from industry lobbyists and their allies in Congress, Obama's trade negotiators are reportedly pushing for language requiring 12 years of exclusivity." Note that the second embedded link in that last quotation takes readers to an op-ed that was co-written by a veteran congresswoman, who also treated "lobbying" as a deus ex machina: "With lobbying and millions in election spending, the drug giants got
inserted into the Affordable Care Act measures that block the U.S. sale
of cost-reducing competition for biologics for 12 years."

Second example: On the April 19 episode of "Last Week Tonight," John Oliver's main story was about "patent trolls." He described how there are companies that exist entirely to buy other companies' patents in order to litigate aggressively against any possible violations, which supposedly harms the economy. Like his piece on college sports (which I criticized here on Dorf on Law last month), his analysis was disappointingly shallow, never bothering to ask if there are any possible upsides to selling patents, and failing to provide any sense of the magnitude of the supposed social costs. (But boy, is he convinced that the effects are big!)

Because I do not have strong views on that particular policy question, I would not have been especially troubled by the piece, despite its shortcomings. It was Oliver's explanation for why a bill to reduce patent trolling had failed in the Senate, however, that caught my attention. His explanation: lobbying. He showed a clip of an opponent of patent trolling saying this: "I know this is news, but trial lawyers' influence in Washington is alive and well." Oliver then added: "Yes, apparently, lobbyists for groups including trial lawyers managed to prevent the bill from moving forward. And you cannot let trial lawyers decide whether there should be more baseless lawsuits." He then made a bizarre (but funny) analogy to raccoons, before asserting that the economy will be ruined by these lawsuits. That was the entirety of his explanation.

I might not have thought too much about those two examples, except that The New York Times ran a piece last week explaining how the proposed Comcast merger/takeover of Time Warner failed. The basic story was that, even though Comcast is an absolute powerhouse when it comes to lobbying in Washington (the article providing scary details regarding the scale of dollars and bodies involved), and even though people on Capitol Hill were more than open to listening to Comcast's arguments, the arguments were simply unconvincing. For example, Connecticut Senator Richard Blumenthal "said he came away from the meeting unconvinced, as did others on Capitol Hill who had similar conversations." An unnamed "senior Senate staff aide" is quoted as saying that Comcast's lobbyists ultimately offered "unsatisfactory answers."

What is going on here? Back in 2010, I wrote a Dorf on Law post in which I tried to think through how lobbying is supposed to work. I was puzzled about how legislators' votes are actually changed by lobbying. The lobbyist walks in the door, the legislator listens and is convinced, and the vote changes. The expenses of lobbying buy the access to the legislator's office, and apparently the rest is easy. On the comments board for that post, one reader discussed the unconscious nature of politicians being swayed by people with money (and the promise/threat of campaign contributions), which I found rather plausible. Still, even with a slightly better sense of the process of how lobbying changes votes, that explanation was still rather thin. In any case, the presumption was that lobbying changes votes, and that this needed to be explained.

Looking at the three examples above, however, we now have a different puzzle. The Times basically says, "Lobbying gets you in the door, but you need a good argument on the merits." But Vox and John Oliver both present what they take to be compelling -- almost incontrovertible -- cases for a change in policy, but then lobbying happens. Surely, the case for the Comcast proposal was at least as plausible as the case for 12 year data exclusivity, or for allowing lawyers supposedly to continue to ruin the economy.

To look at it somewhat differently, consider that Comcast apparently is a welcome presence in the halls of power. The company's chairman has golfed with President Obama. Their lobbying team is legendary. By contrast, trial lawyers are reviled in the public imagination, and one political party has openly declared war on the plaintiffs' bar. Yet when the lawyers' lobbyists get in the door, they kill a supposedly clear improvement in our laws, while Comcast cannot even get a few Senators to send letters to antitrust regulators?

Years ago, Professor Dorf (before he was a professor) commented that people like to have labels to explain things, even though they do not understand what the labels mean. Why do objects fall to the ground? Gravity. Can anyone but physics majors actually explain what gravity is, and why it makes objects fall? No, but people think that "gravity" is an answer. Gravity makes things fall. Given that nearly everyone (including me) thinks that there is too much influence from lobbyists in Washington, it is kind of amazing that we really have no plausible, consistent story of how it works when it works, and when it will fail. If we do not understand it, how can we ever know how to mitigate or reverse the bad outcomes that (we are certain) inevitably occur when lobbying happens?

9 comments:

First, I am puzzled by Mr. Buchanan’s continued criticism of John Oliver, specifically his complaint that Mr. Oliver does not present detailed, factual, analytical and objective insight into an issue. Look, Mr. Oliver is not a journalist, he is an entertainer, he is a comedian. His qualifications to talk about the news are only slightly above the typical Fox News host. His show is not a news show, it is not a public affairs show, it is simply part of HBO’s entertainment business. It is satire and sarcasm, it is not news reporting or analysis. To criticize Mr. Oliver on the basis of a news reporting objective is like criticizing The Big Bang Theory for its failure to adequately explain Quantum Mechanics.

But Mr. Buchanan’s commentary does point out the total and complete lack of depth of news reporting in this nation, that in many cases the so-called main stream media fails to do its job, a fact reinforced by Jon Stewart’s opening piece on Monday about how CNN replaced coverage of the street violence and protests in Baltimore with coverage of the White House Correspondents Dinner. And it illustrates a disturbing trend, that Americans are getting their news from comedy shows because, well, that’s about the only place they can get it from.

A second point is that one reason the Comcast deal comes under greater scrutiny then things like the trade agreement or the preservation of patent protection to the point of absurdity is that Comcast and Time Warner is something ordinary Americans can identify with. Few citizens are aware of or even care about the intricacies of international trade or the complexities of patent law, but mess with their entertainment, jack up the price to see re-runs of Seinfeld, make it harder or more expensive to veg out in front of the telly watching mindless reality shows or vampires or zombies and politicians are going to hear about it.

Great post, Neil, but I can't take credit for the "anti-gravity" point, which I learned from a Richard Feynman book. He related that his own father told him how "gravity" is just a word.

Interestingly, even physicists don't really know what gravity is. Newton's law (attraction between two bodies is directly proportional to the product of their masses and inversely proportional to the square of their distance) describes gravity but does not provide a mechanism. General relativity comes closer. It describes gravity as a warping of space-time but still doesn't give a fine-grained mechanism, and certainly not one that's reconcilable with quantum mechanics. One needs something like a graviton (a particle that carries the force of gravity) or string theory actually to account for gravity. Physics isn't fully there yet.

John Oliver's segments have been praised as intelligent and informed (such as the one on net neutrality). Not merely as "part of HBO's entertainment business." And, the extended format, clear attempt at research and so forth suggests they are aiming for something more.

So, holding him to a higher standard is a valid thing to do. When he covers net neutrality or lack of voting rights in the territories or the problems with use of fines against the poor, it is important. I don't expect "objectivity" as much as some degree of complexity.

I understand it is going to be mixed, this isn't 60 Minutes, but it isn't "Big Bang Theory." And, the show clearly has research assistants and such. He doesn't do all this stuff himself.

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BTW, Zephyr Teachout has an intriguing discussion of the history of lobbying, including how paid lobbying was once seen as against the public interest, in her new book.

So, would it be fair to say, when Someone places responsibility/blame (depending upon One's choice of wording) for a certain political outcome on "lobbying", it is constructive for the People to request exactly Who is doing the lobbying of Whom?

As far as reducing the influence of Lobbyists, a Colleague and I stumbled across an idea a few years back while just rambling about legislatures in general. As a legislature increases in size, the amount of time necessary for a Lobbyist to persuade enough Legislators for a certain outcome increases; since Lobbyists only have so many hours in a day and only so many days a year to persuade, doubling the size of the House of Representatives should reduce the sway Lobbyists have over federal policy by ~50%. Just a thought.

"The Times basically says, 'Lobbying gets you in the door, but you need a good argument on the merits.'" Or, the Times is holding to the convenient fiction that everybody involved is at least "sort of" honest. Might it at least as accurately have said: Special interests' money got politicians inclined to vote with them elected, and their lobbyists go in the door to remind the politicians whose side they're on?

Not only follow the money given to lobbyists and to whom lobbyists dole it out, but follow the former elected officials engaging in lobbying and compare their positions when they were elected officials with their positions as lobbyists. Money is the lifeblood of elected officials and of lobbyists. So is it a coincidence that so many former elected officials become lobbyists?

I like the post. I agree that people in public policy debates often just use empty labels. Yet I'm skeptical that the negativity is warranted. First, to take the gravity example, I don't think it is so bad that normal people just use the word "gravity" to explain why things fall, without a more fine-grained theory to explain the mechanic by which it works. Even without a fine-grained understanding of the mechanics of what causes gravity, we have airplanes and space stations. Sure, if we understood gravity even better, we might get even better stuff, but it is too pessimistic to say that people are shouting "gravity" as if they were shouting "abracadabra."

Second, I think you are conflating too many people with the "we" here. Political scientists do put forward the kind of more specific models that you are talking about, though there is no widely-agreed upon consensus version. It is the general public and television pundits who simply use "lobbying" as an under-theorized catch-all. I'm skeptical that we can reasonably expect, or would want to expect, television pundits to debate like academic political scientists. It might elevate the quality of punditry, but it wouldn't actually change anything, since all it would mean that viewership would decline to the level of the circulation of the Am Poli Sci Rev.